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On Wednesday, May 20, 2015, Senator Rand Paul (R-KY) took the Senate floor to filibuster the USA FREEDOM Act. While the Senate was considering a bill on trade promotion authority or “fast track” legislation, Senator Paul’s filibuster was intended to stall consideration of a vote of the USA FREEDOM Act. Senate procedural rules mean that the Senate would not be able to take a procedural vote on the USA FREEDOM Act or Senator McConnell’s bill to allow clean reauthorization of Section 215 until at least Saturday, unless there is an agreement to shorten the addition 30 hours of debate permitted.

Senator Paul has been a sharp critic of government surveillance, including under Section 215 of the PATRIOT Act which is also known as the “library records” or “business records” provision. This provision has been relied upon by the National Security Agency (NSA) to engage in bulk collection of telephone metadata, though the Second Circuit recently ruled that such bulk collection was unlawful under Section 215. While the USA FREEDOM Act provides for new safeguards, Senator Paul has opposed the extension of Section 215 and other provisions of the PATRIOT Act. Although he opposes the current text of the USA FREEDOM Act, Paul has announced his intention to offer several amendments to the legislation.

Additionally, while Senator McConnell has now filed motions to proceed on the USA FREEDOM Act and his reauthorization bill, both would still need to clear the hurdle of 60 votes for cloture. It is not clear whether there are enough votes for either bill. While there have been suggestions that Congress could pass a very short-term reauthorization — for example, a two-moth reauthorization — to provide time to forge compromise legislation, the House may not be able to consider such legislation before the June 1 sunset. There is, therefore, a possibility that Section 215 of the PATRIOT Act might sunset, which could greatly change the dynamic of the discussions on surveillance reform. Should Section 215 sunset, any reform legislation would essentially be seen as granting or reinstating authorization for surveillance under this provision once again rather than simply extending existing authorities, thus changing the political dynamic and potentially creating a basis for stronger reform to protect privacy and civil liberties.

On February 5, 2015, ARL, together with ALA and ACRL, sent a letter to Senators Hatch (R-UT) and Wyden (D-VT) expressing concerns over “fast track” trade promotion authority. Under “fast track,” Congress grants the President authority to sign trade agreements and Congress is only able to approve or reject the agreement in a straight up-down vote, meaning that it cannot amend this agreement. Such a process limits Congress’ ability to meaningfully weigh in on the agreement.

Using the Trans-Pacific Partnership Agreement (TPP) as an example, the letter highlights the inequities surrounding access to information about the substance of the agreements. While the negotiations are conducted in secrecy and the general public is not permitted to see text, cleared advisors are permitted to view proposals and make substantive comments through “trade advisory committees.” Members of the intellectual property trade advisory committee represent large corporate interests; current members include, for example, representatives from the Recording Industry Association of America (RIAA) and the Copyright Clearance Center (CCC). Past representatives include Time Warner, the Association of American Publishers (AAP) and the Motion Picture Association of America (MPAA). While these corporate interests are well represented, the general public has had to rely on leaks in order to view text. The letter points out, “Policy should not be made in secret, with the general public kept in the dark about what effects the agreement will have.”

The letter also notes concerns that the comprehensive intellectual property chapter included in the TPP could contain provision requiring changes to current law, or locking-in undesirable provisions of U.S. law which would make it difficult to amend the law without violating the agreement. One such harmful provision is the U.S. copyright term of life plus seventy years, which was recently reported as the term of protection TPP negotiators have agreed to. This lengthy term has been problematic, contributing to the orphan works problem and hampering the public domain.

The letter concludes:

Given the impacts that agreements like the TPP and TTIP will have, Congress should ensure that it does not delegate its authority to the Executive Branch. Congress must be an active participant in reviewing these agreements before accepting their content and should not grant fast track authority, at least with respect to intellectual property provisions in these agreements. Alternatively, if legislation on fast track does include language on intellectual property, this language must protect the careful balance that exists in US law. Libraries, and the vast public we serve, depend on a balanced copyright system, including important limitations and exceptions such as fair use and the first sale doctrine. Any language granting fast track authority implicating intellectual property must recognize the importance of limitations and exceptions.

Unless otherwise noted, posts after January 10, 2014 are written by Krista L. Cox, Director of Public Policy Initiatives at ARL. Some of the content here will not be written or created by ARL, but rather will be collected from elsewhere on the web. Quotation does NOT imply endorsement!

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02/19/2019 at 3:09pmI first saw this discussed on Twitter, now WaPo has an article on Justice Thomas' concurrence in a denial of cert, but that urges reexamining the 1st & 14th Amendments in libel cases (i.e. a reexamining of NYT v Sullivan) https://t.co/lCwY85MEO0